RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           25 January 2005
      DOCKET NUMBER:  AR2004106653


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge (UD)
be upgraded.

2.  The applicant states, in effect, that the incident that resulted in his
discharge was the result of an arms room guard falsely accusing him of
stealing his bayonet and loading his weapon and pointing it at him and his
friend.  He claims that when the guard pointed the weapon at him, he raised
his arm and knocked the weapon out of the guard’s hands and hit him.  He
states that he was later told he was going to be court-martialed, or he
could accept a discharge.  He claims that to this day, he still wishes he
had accepted the court-martial.  He states the only thing he was guilty of
was defending himself when this man pointed a loaded weapon at him.

3.  The applicant provides two character references in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 10 February 1972.  The application submitted in this case
is dated
30 March 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s record shows he enlisted in the Regular Army and
entered active duty on 3 June 1970.  He was trained in and awarded military
occupational specialty (MOS) 55B (Ammunition Storage Specialist).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he was
assigned to Fort Lewis, Washington upon completion of his training.  Item
33 (Appointments and Reductions) shows he was promoted to private first
class (PFC) on 26 October 1970, and this was the highest rank he attained
while serving on active duty.  It also shows that on 13 January 1971, he
was reduced to private/E-2 (PV2) and on 7 February 1972, he was reduced to
private/E-1 (PV1).
5.  Item 41 (Awards and Decorations) of the applicant’s DA Form 20 shows
that he earned the National Defense Service Medal and Expert Qualification
Badge with Rifle Bar during his tenure on active duty.  The record
documents no acts of valor, significant achievement or service warranting
special recognition.

6.  The applicant’s disciplinary history includes his acceptance of
nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) on 13 January 1971, for sleeping on
guard duty.  His punishment for this offense included a reduction to PV2,
forfeiture of $30.00 and 14 days of extra duty.

7.  Item 44 (Time Lost Under Section 972, Title 10, United States Code) of
the applicant’s DA Form 20 shows that he was absent without leave (AWOL) on
the following two separate occasions:  15 through 25 July 1971 and 31
December 1971 through 3 January 1972.

8.  On 13 January 1972, a Charge Sheet (DD Form 458) was prepared
preferring a court-martial charge against the applicant for violating
Article 134 of the UCMJ by threatening an arms room guard.

9.  The applicant consulted with legal counsel and was advised of the basis
for the contemplated trial by court-martial that provided for a punitive
discharge, the effects of a request for discharge for the good of the
service and of the rights available to him.  Subsequent to this counseling,
he voluntarily requested discharge for the good of the service, in lieu of
trial by court-martial.  In his request for discharge, the applicant
indicated that he had not been coerced into requesting discharge and had
been advised of the implications that were attached to the request.  He
further acknowledged that he could be discharged under other than honorable
conditions and receive an UD.  He also stated that he understood that as a
result of receiving such a discharge, he be deprived of many or all Army
benefits, that he could be ineligible for many or all benefits administered
by the Department of Veterans Affairs (VA), and that he could be deprived
of his rights and benefits as a veteran under both Federal and State law.

10.  On 7 February 1972, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD and that he be
reduced to the lowest enlisted grade.  On 10 February 1972, the applicant
was discharged accordingly.  The DD Form 214 he was issued confirms he
completed a total of
1 year, 7 months and 25 days of creditable active military service and that
he accrued 13 days of time lost due to AWOL.

11.  On 3 September 1982, the Army Discharge Review Board (ADRB) considered
the applicant’s case and after carefully reviewing the facts and
circumstances, found the applicant’s discharge was proper and equitable.

12.  The applicant provides two character references, from an Evangelist
and Reverend, which attest to his good character and post service conduct.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part, that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate. However, at the time of the applicant's separation the
regulation provided for the issuance of an UD.

14.  Title 10, U.S. Code, section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that his discharge was too harsh and the
supporting character references he submits were carefully considered.
However, these factors were not found to be sufficiently mitigating to
warrant an upgrade of his discharge.

2.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, he voluntarily requested
discharge from the Army in lieu of trial by court-martial.  The record
shows all requirements of law and regulation were met, the rights of the
applicant were fully protected throughout the separation process.  Further,
the applicant’s discharge accurately reflects his short and undistinguished
record of service.

3.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 3 September 1982.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 2 September 1985.  However, he did not
file within the
3-year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LMD_  ___KAN _  ___JEA__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ____Kathleen A. Newman___
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004106653                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/01/25                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1972/02/10                              |
|DISCHARGE AUTHORITY     |AR 635-200  C10                         |
|DISCHARGE REASON        |In Lieu of Court-Martial                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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